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Criminal Law

Charges cannot be Deleted under Section 216 CrPC

 21-Apr-2025

Directorate of Revenue Intelligence & Anr v. Raj Kuamr Arora & Ors. 

“It is reiterated that the language of Section 216 CrPC provides only for the addition and alteration of charge(s) and not for the deletion or discharge of an accused.” 

Justice JB Pardiwala and Justice Manoj Misra 

Source: Supreme Court 

Why in News? 

A bench of Justice JB Pardiwala and Justice Manoj Misra held that under Section 216 of CrPC charges cannot be deleted. 

  • The Supreme Court held this in the case of Directorate of Revenue Intelligence v. Raj Kumar Arora (2025). 

What was the Background of Directorate of Revenue Intelligence v. Raj Kumar Arora (2025) Case?   

  • On 27th September, 2003, the Department of Revenue Intelligence Headquarters (DRI(HQ)) received information about illegal glass ampoules containing Buprenorphine stored at an office in New Delhi. 
  • DRI officers conducted simultaneous searches at both the Delhi office premises and at M/s Win Drugs Ltd. in Jind, Haryana. 
  • During the Delhi search, officers found Raj Kumar Arora (respondent no. 1) on the premises and recovered 25 cartons containing 40,000 unlabeled and 1 labelled glass ampoules of Buprenorphine Hydrochloride. 
  • At the Haryana facility, officers seized an additional 23,400 Buprenorphine injections and 100 grams of Buprenorphine powder. 
  • Respondent no. 1 provided a statement revealing a network involving himself, Mohd. Shebar Khan (respondent no. 2), Devang Bipin Parekh (respondent no. 3), and Naresh Mittal of Win Drugs Ltd. in the illegal manufacture, storage, and distribution of Buprenorphine. 
  • All three respondents were subsequently arrested and charged under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 
  • The Special Court framed charges against the respondents on February 8, 2005, finding prima facie evidence of their involvement. 
  • The High Court granted bail to all respondents, raising questions about whether Buprenorphine Hydrochloride fell under the NDPS Act or should be regulated under the Drugs and Cosmetics Act, 1940 (D & C Act). 
  • The respondents filed an application under Section 216 of Criminal Procedure Code, 1973 for amendment/alteration of the charge, which the Special Judge allowed, ruling that the case should proceed under the D&C Act rather than the NDPS Act. 
  • The appellant's revision petition against this order was dismissed by the High Court, which followed the Supreme Court's reasoning in State of Uttaranchal v. Rajesh Kumar Gupta that if a drug is not listed in Schedule I of the NDPS Rules, Section 8 of the NDPS Act would not apply. 
  • The High Court determined that the matter should be tried by the Metropolitan Magistrate under the provisions of the D&C Act rather than as an NDPS case. 

What were the Court’s Observations? 

  • The Court discussed the law on alteration of charges as enunciated under Section 216 of CrPC. 
  • The Court observed that the provision provides that the Court is empowere to “add” or “alter” any charge framed. The provision does not expressly provide the stage after which the power under Section 216 CrPC can be exercised. Logic however dictates that the same can be exercised only once charge is framed under Section 228 of CrPC.   
  • If no charge is framed there arises no situation to add or alter it. As a natural corollary if an accused has already been discharged under Section 227 CrPC, no application or action under Section 216 CrPC would be maintainable. 
  • The Court further observed that P. Ramanatha Aiyar in his Law Lexicon (6th Edn.) defined “alter” as “to make a change in; to modify; to vary in some degree”.  
  • To illustrate a case of alteration the Court observed: 
    • Let’s say an accused is charged with an offence initially under Section 323 IPC for simple hurt. If the Trial Court is of the opinion that the case is in fact one of grievous hurt, it may alter the charge of the accused for an offence under Section 325 IPC. This would be an alteration since the broad subject matter continues to be the same. Further, to amend would imply that the modification made in the subject improves it, which might not necessarily be the case with an alteration.
  • Thus, the Court concluded that amendment may involve an alteration but alteration does not always amend. 
  • The Court observed that Section 216 of CrPC provides the Court with the power to- one alter a charge and two add to a charge. However, the provision does not imply that the Court can delete the charge. 
  • In this regard the Court cited the recent judgment of K. Ravi v. State of Tamil Nadu and Another (2024) wherein the Supreme Court held the following: 
    • Section 216 does not give any right to the accused to file a fresh application seeking discharge after the charge has been framed by the Court. 
    • The Court held that an accused cannot seek a discharge under the garb of modification/alteration of charge through a Section 216 application. 
    • The Court also highlighted that it has become routine practice for the accused to file an application under Section 216 CrPC after their application for discharge under Section 227 CrPC is dismissed. 
  • Further, the Allahabad High Court also held in the case of Dev Narain v. State of U.P. and Another (2023) that alteration of charge and deletion of charge hold different field and that these two cannot be intermingled. 
  • The Supreme Court in the facts of the present case ruled that dealing in Buprenorphine Hydrochloride constitutes an offense under Section 8 of the NDPS Act despite its absence from Schedule I of the NDPS Rules. 
  • The Court determined that the decision in Sanjeev v. Deshpande (2014) should apply retrospectively, allowing accused persons to be tried by Special Judges under NDPS provisions rather than under the D & C Act. 

What is Alteration of Charges under Section 216 CrPC? 

  • Section 216 of CrPC provides for alteration of charges. 
  • It is provided for under Section 239 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).  
  • Section 216 of CrPC provides for the following: 
    • Any court can change or add to charges at any time before pronouncing judgment. 
    • Every change or addition must be read and explained to the accused. 
    • If the court believes the change or addition won't disadvantage the accused's defense or the prosecutor's case, the trial can continue as if the altered charge was the original one. 
    • If the court believes the change or addition might disadvantage either party, it can either order a new trial or adjourn the current trial for a necessary period. 
    • If the altered charge requires prior sanction for prosecution, the case cannot proceed until such sanction is obtained, unless sanction was already granted for prosecution based on the same facts. 
  • The power under Section 216 CrPC is exclusive to the concerned Court and no party can seek such an addition or alteration of charge as a matter of right by filing an application. 
  • The provision has been enacted with the salutary object to ensure a fair and full trial to the accused person(s) in each case. 
  • In the case of Anant Prakash Sinha v. State of Haryana and Another (2016) the Supreme Court summarised the principles on alteration of charges as follows: 
    • First, the test for exercise of power under Section 216 CrPC is that it must be founded on the material available on record and therefore, itcan be on the basis of the complaint or the FIR, or other accompanying documents or materials brought on record during the course of the trial. The charge which has been framed by the Trial Court must therefore be in accord with the materials available before him 
    • Secondly, the power must not be construed in a restricted manner to mean that unless evidence has been let in, the charges that have already been framed cannot be altered. The Court is empowered to change or alter the charge framed, if it finds that there is a defect or that something has been left out in the order framing charge. 
    • Thirdly, it is obligatory for the Court to ensure that no prejudice is caused to the accused due to the addition or alteration of charge. The accused must be informed and made aware of the new charge as also the case against him so that he can understand the defence that can be led on his behalf.

Mercantile Law

Arbitral Tribunal can Proceed Even if Notice under Section 21 not Served

 21-Apr-2025

Adavya Projects Pvt Ltd v. M/s Vishal Structurals Pvt Ltd & Ors 

“Non-service of the notice under Section 21 and the absence of disputes being raised against respondent nos. 2 and 3 in the appellant’s notice under Section 21 of the Act do not automatically bar their impleadment as parties to the arbitration proceedings.” 

Justice PS Narsimha nd Justice Manoj Misra 

Source: Supreme Court 

Why in News? 

A bench of Justice PS Narsimha and Justice Manoj Misra held that absence of a Section 21 notice to a party does not nullify arbitral jurisdiction if the party is otherwise bound by the arbitration agreement. 

  • The Supreme Court held this in the case of Adavya Projects Pvt Ltd v. M/s Vishal Structurals Pvt. Ltd. (2025). 

What was the Background of Adavya Projects Pvt Ltd v. M/s Vishal Structurals Pvt. Ltd. (2025) Case?   

  • The appellant and respondent no. 1 entered into an LLP Agreement dated 01st June 2012 to form a Limited Liability Partnership named Vishal Capricorn Energy Services LLP (respondent no. 2). 
  • Only the appellant and respondent no. 1 are signatories to the LLP Agreement. 
  • Clause 8 of the LLP Agreement designated Mr. Kishore Krishnamoorthy (respondent no. 3) as the Chief Executive Officer of the LLP, responsible for business administration and contract execution. 
  • Respondent no. 3 is also a director of respondent no. 1 company. 
  • Clause 40 of the LLP Agreement contains an arbitration clause for dispute resolution. 
  • Oil India Ltd. awarded a contract to a consortium (including respondent no. 1) on 31st December 2012 for a project in Tenughat, Assam. 
  • The consortium sub-contracted the project to respondent no. 1 on 08th January 2013. 
  • The appellant and respondent no. 1 entered into a Supplementary Agreement and MoU on 29th January 2013 to execute the project through respondent no. 2 (the LLP). 
  • The appellant invested Rs. 1.1 crores for the project execution. 
  • Disputes arose in 2018 when the appellant sought to audit the LLP's accounts related to the project. 
  • The appellant issued demand notices to respondent no. 1 in 2019 for payment of Rs. 7.31 crores. 
  • On 17th November 2020, the appellant invoked arbitration under Clause 40, but only against respondent no. 1. 
  • The appellant filed an application under Section 11 of Arbitration and Conciliation Act, 1996 (ACA) for arbitrator appointment, naming only respondent no. 1 as a party. 
  • After arbitration commenced, the appellant attempted to implead respondent nos. 2 and 3 in its statement of claim. 
  • The issue is whether impleadment as above can be done in the facts of the present case.

What were the Court’s Observations? 

  • Section 21- Notice and Joinder in Section 11 Application Not Mandatory: 
    • The service of a Section 21 notice and being a party to a Section 11 application are not prerequisites to implead a person/entity in arbitral proceedings. 
  • Purpose of Section 21 Notice: 
    • To fix the commencement date of arbitration (relevant for limitation under Section 43). 
    • To inform the respondent of the claims, allowing them to accept/dispute them. 
    • To help in appointment of arbitrators or raise objections. 
    • To initiate court intervention under Section 11 if appointment procedure fails 
  • The primary function of notice under Section 21 is procedural—triggering time-related mechanisms, and not determining jurisdiction. 
  • The Court further observed that absence of a Section 21 notice to a party does not nullify arbitral jurisdiction if the party is otherwise bound by the arbitration agreement. 
  • With regard to inquiry under Section 16 of ACA: 
    • Under Section 16, the arbitral tribunal has the authority to decide whether it has jurisdiction, including on issues of joinder and party status. 
    • The tribunal must examine whether the person/entity sought to be joined is a party to the arbitration agreement or is bound by it by conduct. 
    • If a person is found to be a party to the arbitration agreement, either expressly or by their conduct, then the tribunal has jurisdiction over them. 
  • The Court in the end made the following observations: 
    • Section 21 Notice Is Mandatory but Not Jurisdictional: 
      • While a Section 21 notice is necessary to commence arbitration and for limitation purposes, non-issuance to certain parties does not affect the arbitral tribunal’s jurisdiction to implead them. 
    • Section 11 Application Has Limited Scope: 
      • The court's role under Section 11 is only to appoint arbitrators and conduct a prima facie examination. Its decision does not bind the arbitral tribunal on who may be joined as parties. 
    • Tribunal’s Jurisdiction Depends on the Arbitration Agreement: 
      • The key inquiry under Section 16 is whether the person is a party to the arbitration agreement, either expressly or by conduct, as per Section 7 of the ACA. 
    • Respondents 2 and 3 Are Bound by the Arbitration Agreement: 
      • Despite being non-signatories, their conduct under the LLP Agreement shows they are parties to it and can be validly joined in the arbitral proceedings.

What is Notice under Section 21 of ACA? 

  • Section 21 of the ACA provides for commencement of arbitral proceedings. 
  • Section 21 provides: 
    • Arbitral proceedings commence on the date the respondent receives the request for arbitration. 
    • The commencement is linked to the specific dispute mentioned in the request. 
    • This rule applies unless the parties have agreed otherwise in their arbitration agreement.